by
PAUL
J.
RICHARDS/AFP/Getty
Images)
Under
the
second
Trump
administration,
reality
constantly
keeps
topping
sarcasm.
When
three
Republican
justices
ruled
against
Trump’s
tariffs,
leading
the
president
to
say
they
“sicken”
him,
I
described
the
Chief
Justice’s
position
to
a
figurative
“cuck
chair.”
He’d
put
aside
any
principles
or
sense
of
institutional
legitimacy
to
give
Trump
the
White
House
and
a
blank
check
of
functional
total
immunity,
only
to
find
himself
ritualistically
humiliated
in
public
for
refusing
to
support
Trump’s
massive,
illegal
tax
hike.
And
then
Donald
Trump
decided
to
take
the
cuck
chair
analogy
much
more
literally,
and
physically
showed
up
to
watch
the
Supreme
Court
humiliate
his
Solicitor
General
as
he
attempted
to
defend
the
administration’s
attack
on
birthright
citizenship.
Indeed,
his
dingbat
Civl
Rights
Division
chief
thought
the
chair
was,
in
fact,
literal:
There
is
not.
And
Jamelle
Bouie
quickly
made
the
explicit
connection:
“they
are
calling
it
the
scotus
cuck
chair.”
Instead,
Trump
arrived
and
took
a
seat
in
the
gallery
to
witness
oral
argument
over
Trump’s
effort
to
undo
the
Fourteenth
Amendment’s
citizenship
language.
The
administration’s
argument
rests
on
a
handful
of
“originalists”
claiming
that
the
original
understanding
of
the
Amendment
did
not
support
birthright
citizenship
despite
this
being
the
unchallenged
understanding
of
the
text
for
well
over
a
century.
And
by,
“unchallenged,”
we
mean
originalists
like
Randy
Barnett
of
Georgetown
who
wrote
a
book
about
the
Fourteenth
Amendment
never
said
anything
about
this
language
until
now.
A
reading
so
“original”
that
no
one
noticed
it
until
it
happened
to
align
with
contemporary
Republican
party
priorities.
Reality
continues
to
out
pace
snark.
The
Court,
by
and
large,
did
not
seem
prepared
to
overturn
a
bedrock
principle
of
American
law
based
on
Richard
“COVID
will
only
kill
500
people”
Epstein’s
trenchant
analysis
of
a
subject
where
he’s
not
really
an
expert.
How
bad
did
it
get
for
the
administration?
Solicitor
General
John
Sauer,
when
pressed
about
all
the
clear
historical
evidence
that
the
Fourteenth
Amendment
was
understood
to
apply
to
the
children
of
people
living
here,
beat
a
rapid
retreat
from
originalism,
“We’re
in
a
new
world
where
8
billion
people
are
one
plane
ride
away
from
having
a
child
who’s
a
US
citizen.”
Only
for
the
Chief
to
coldly
reply,
“It’s
a
new
world.
It’s
the
same
Constitution.”
Sauer
didn’t
fare
much
better
with
Justice
Gorsuch.
As
Sauer
listed
descriptions
of
what
constitutes
“unlawfully
present,”
Gorsuch
witheringly
remarked
“The
stuff
you
have
about
‘unlawfully
present,’
it’s
like
Roman
law
sources
you’re
going
to.”
Apparently,
we’ve
found
the
one
man
who
doesn’t
think
about
the
Roman
Empire
every
day.
Sauer
mentioned
Wong
Kim
Ark,
the
Supreme
Court
case
the
unequivocally
closed
the
door
on
Trump’s
birthright
citizenship
over
125
years
ago,
and
Gorsuch
jumped
in
with
“I’m
not
sure
how
much
you
want
to
rely
on
Wong
Kim
Ark.”
It
was
like
watching
a
pack
of
predators
play
with
their
kill.
And
that
wasn’t
even
the
worst
flub
with
Gorsuch:
Sauer
had
even
raised
the
topic
of
Native
peoples
off-handedly
earlier
in
the
argument
so
someone
in
the
office
had
at
least
a
vague
sense
that
they
were
walking
into
a
minefield
with
Gorsuch.
And,
as
the
principle
of
Gorsuch’s
Gun
teaches:
if
you
raise
the
topic
of
Indian
law
in
the
first
act,
it
must
end
up
embarrassing
the
government
before
the
final
act.
Barrett
didn’t
prove
any
more
friendly
to
the
government.
Sauer
kept
trying
to
create
a
distinction
based
on
people
coming
to
America
with
an
intent
to
remain
—
advancing
the
dubious
theory
that
African
slaves
brought
to
the
United
States
—
and
inarguably
covered
by
the
birthright
citizenship
clause
—
took
the
view
that
slavery
sucks,
but
hey
at
least
we
live
here
now!
Barrett
bypassed
this
insanity
to
ask
the
related
question
about
the
children
of
human
trafficking
victims
brought
to
the
United
States
illegally.
Sauer’s
answer
could
best
be
described
as…
confused.
Kavanaugh
seemed
most
interested
in
finding
a
quick
and
easy
way
out
of
the
case
that
could
make
the
right
decision
while
staying
in
Trump’s
good
graces.
Over
and
over,
Sauer
stressed
“domicile”
as
the
key
to
citizenship,
despite
the
word
appearing
exactly
zero
times
in
the
text.
Even
Clarence
Thomas
seemed
half-assed
in
his
enthusiasm
for
the
administration’s
argument.
He
focused
on
Dred
Scott,
laying
the
groundwork
for
an
opinion
rewriting
the
Fourteenth
Amendment
to
only
apply
to
the
children
of
freed
slaves
and
a
constitutional
anachronism
in
2026.
Though
by
the
end
it
wasn’t
even
clear
if
his
heart
was
in
it.
Indeed,
Sam
Alito
appeared
to
be
the
only
justice
fully
on
board
with
Trump’s
argument,
trying
to
sell
a
story
about
unwanted
immigration
being
non-existent
at
the
time
of
the
Fourteenth
Amendment,
as
though
there
wasn’t
an
aggressive
anti-Catholic
movement
in
the
19th
Century
whose
nightmare
scenario
was
an
Italian
immigrant’s
son
being
on
the
Supreme
Court.
Imagine
the
look
on
their
faces
if
one
could
go
back
and
tell
them
an
Italian-American
Catholic
with
a
European
knighthood
would
be
the
one
channeling
their
vision
from
the
bench.
At
one
point,
Cecilia
Wang,
arguing
for
the
ACLU,
pointedly
noted
that
the
children
of
Italian
immigrants
in
1898
wouldn’t
be
citizens
under
Alito’s
reading,
though
he
seemed
unmoved
as
though
he
didn’t
get
that
she
was
talking
about
his
community.
It’s
the
Chappelle
Show‘s
Clayton
Bigsby
bit,
but
real.
As
for
Trump…
he
bailed
on
the
hearing
early
after
it
became
glaringly
obvious
how
badly
he
was
losing.
What
are
the
odds
that
he
fires
Sauer
within
the
next
48
hours?
Got
to
be
pretty
good,
right?
Keep
on
eye
on
the
White
House
insiders
making
huge
Polymarket
bets
on
this
about
10
minutes
before
it
happens.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.